Phillips v. Newsome
| Decision Date | 26 June 1915 |
| Docket Number | (No. 8281.) |
| Citation | 179 S.W. 1123 |
| Parties | PHILLIPS v. NEWSOME. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bosque County.
Action by D. F. Phillips against J. L. Newsome. Judgment for defendant, and plaintiff appeals. Affirmed.
Carlock & Carlock, of Ft. Worth, for appellant. H. E. Trippet, of Hico, for appellee.
This is an appeal from a judgment perpetuating a temporary writ of injunction issued out of the district court of Bosque county to restrain the sale of a certain stationary steam engine, alleged to constitute a part of the permanent fixtures of certain gin property and lots owned by the appellee, Newsome. The levy and threatened sale was by the appellant, Phillips, as constable of precinct No. 2 of Bosque county, by virtue of an order of sale issued out of a justice court in favor of the Southern Trading Company and against the Eubanks & Henry Gin Company, the order having been issued in accordance with the terms of a judgment foreclosing a chattel mortgage upon the engine mentioned.
The mortgage was seasonably and duly recorded in the chattel mortgage record of Bosque county, to which the Eubanks & Henry Gin Company took the engine and used it in the construction and operation of a cotton gin on lots 1, 3, 4, 5, 6, 8, 9, 11, 12, 13, and 14, in block 5, in the town of Iredell. Later, to wit, in 1912, the Eubanks & Henry Gin Company not having paid their mortgage debt at its maturity, the Southern Trading Company of Texas instituted its suit against the gin company in the justice court of precinct No. 2 of Bosque county, and prosecuted it to a judgment in their favor, foreclosing the mortgage before mentioned; and, as stated, it is by virtue of this judgment that the enjoined order of sale was issued. In August, 1912, however, prior to the entry of the judgment above mentioned in favor of the Southern Trading Company, the appellee, J. L. Newsome, purchased the lots and gin property before mentioned, paying a valuable consideration, and received a warranty deed. At the time of this purchase he was without any actual notice of the claim of the Southern Trading Company, or of its chattel mortgage.
In reviewing the proceedings below we are called upon, by the assignments of error, to determine whether the engine at the time of appellee's purchase of the gin was personal property, as appellant contends, or whether it constituted a part of the realty, as appellee insists, and this question depends upon the further question of whether, at the time of appellee's purchase, the engine had become so attached to the real property as to become a fixture thereon. The evidence may be said to be conflicting upon this point, but, tested by the ordinary rules, we can but think that the evidence fully sustains the trial court's holding, to the effect that the engine had become a fixture and constituted a part of the real property upon which it was situated. The appellee testified that the engine upon which the levy had been made was a part of the gin machinery at the time he bought the gin; that it was pointed out to him as a part of the gin and connected therewith at the time; that it was bolted to the floor, that is, bolted to the concrete foundation; that if the engine was taken out of the gin, it would destroy the usefulness of the gin; that a concrete foundation, thought to be five or six feet in the ground, had been prepared for the bed of the engine, and...
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Kelvinator St. Louis v. Schader
...states which seem to us to announce the only rational rule to be applied in such a situation as we have here. The case of Phillips v. Newsome (Tex.), 179 S.W. 1123. was a case in which the Southern Trading Company sold engine to the Eubanks & Henry Gin Company, the latter executing a chatte......
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Kelvinator St. Louis, Inc., v. Schader
...to deprive him of title to fixtures attached to the realty, since he is not required to examine the personal property records. Phillips v. Newsome, 179 S.W. 1123 (Tex. Civ. App.); Ice, Light & Water Co. v. Lone Star Engine & Boiler Co., 15 Tex. Civ. App. 694, 41 S.W. 834; Bringholff v. Munz......
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Skinner v. Stewart Plumbing Co
...authorities bearing upon the question under considera-tion: Case Mfg. Co. v. Garven, 45 Ohio St. 289, 13 N. E. 493; Phillips v. Newsome (Tex. Civ. CL App.) 179 S. W. 1123; Elliott v. Hudson, 18 Cal. App. 642, 124 P. 103, 108; Ice, etc., Co. v. Lone Star Engine, etc., Works, 15 Tex. Civ. App......
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Davenport v. Taylor County Tuberculosis Ass'n, 1278.
...Citizens' Nat. Bank v. Elk Mfg. Co. (Tex. Com. App.) 29 S.W.(2d) 1062; Taylor v. Lee (Tex. Civ. App.) 139 S. W. 908; Phillips v. Newsome (Tex. Civ. App.) 179 S. W. 1123; Ice, Light & Water Co. v. Lone Star Engine, etc., Works, 15 Tex. Civ. App. 694, 41 S. W. 835; Tibbetts v. Horne, 65 N. H.......